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33 Santa Clara Computer & High Tech. L. J. 1 (2016-2017)

handle is hein.journals/sccj33 and id is 1 raw text is: INDIFFERENCE AND SECONDARY LIABILITY FOR COPYRIGHT INFRINGEMENT Richard G. Kunkelt Online infringements of copyright have been rampant for decades and shows no signs of abating. Owners of copyrighted films, music and books have attempted to hold infringers liable, but the expense of enforcing their rights against individual infringers is prohibitive. A more effective method of preventing infringement is to attempt to hold online intermediaries, such as Internet Service Providers (ISPs), secondarily liable for the primary infringements of their subscribers. Theories of contributory infringement, vicarious liability and inducement liability all rely on affirmative acts by intermediaries that facilitate infringement by others. In Roadshow Films Pty Limited v iiNet Limited, the Australian High Court considered whether an ISP's indifference to primary infringements by its subscribers would make the ISP secondarily liable for authorising the infringements under Australia's Copyright Act. The High Court unanimously ruled that the ISP was not secondarily liable for its indifference - despite knowing of specific acts of infringement and having ongoing control over its users' accounts. The decision has important legal and public policy implications for secondary liability for Internet intermediaries in Australia and worldwide. The High Court decision and its ramifications are discussed in this article. T Associate Professor in the Department of Ethics and Business Law of the Opus College of Business at the University of St. Thomas, St. Paul, MN. The research for this article was facilitated by research grants from the Opus College of Business and by a sabbatical grant from the Faculty Development Center at the University of St. Thomas. Thanks to Jennifer O'Reilly for her research assistance, editing and encouragement. Thanks also to John Evans, Paul and Pauline von Nessen, Chris and Martin Goodall, Martin and Pauline Wright, Ian and Irene Hughes, Jeanette and Lance Hacket, Bill and Susan Willesee for their support of my sabbatical activities in Australia. My greatest thanks are for my wife, Pam, for her constant support of my academic adventures. I

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